Nothing is absolute. Even fundamental freedoms are subject to reasonable and limited restrictions that are consistent with their purpose. These includes laws about (1) libel and slander, (2) incitement to riot, (3) threats and intimidation, (4) harassment, (5) public obscenity, (6) public nuisances and probably other things I didn’t think of.

But I can’t think of a situation in which I would forbid somebody to peaceably express their opinion based on the nature of that opinion.

And if you could make me admit to an exception, I would define that exception as narrowly as possible and not use it as a precedent.

What is the point of freedom of speech?

Freedom of speech is an important individual right. Being able to speak your mind without fear is necessary for human flourishing. Nobody can be happy if they have to conceal their opinions out of fear.

Freedom of speech is a our social contract. It provides a way in which people of radically different opinions can live together without violence. I may think you not only wrong but wicked, and you may think the same of me. But it is better for both of us, and for those around us, if we agree to settle our differences with facts and ideas, not guns and clubs.

Freedom of speech is necessary for self-government. Citizens of a free country have a right to hear all sides of public questions. Your choice is not completely free if someone has the power to limit what facts and opinions you are allowed to hear.

Freedom of speech is most valuable to the least powerful. The rich and powerful in any framework will be able to make their views known. Reformers, dissidents and the poor and marginalized are the ones most in need of the right of free speech, and that is true even if they have less of it than the powerful.

And, under the First Amendment to the U.S. Constitution, free speech is more than just a good idea – it’s the law.

The Constitution provides another way besides impeachment to get rid of a sitting President. This is a determination by the Cabinet and Congress under the 25th Amendment that he is “unable to discharge the powers and duties of his office”.

I wrote a number of times during the election campaign that I do not think Donald Trump is intellectually, temperamentally or morally fit to be President of the United States.

The process allows a President to declare himself unable to discharge his office and to delegate his power to his Vice President. It also allows the Vice President, with the support of the Cabinet, to declare the President unable to serve.

I think the kind of situation they had in mind was President Eisenhower’s heart attack in 1955 and his stroke in 1957.

Normally the President would resume the duties of his office when he declared himself able to do so.

But the Vice President and Cabinet could ask Congress to overrule him.

Congress would have 21 days to bar the President from resuming his powers.

This would require a two-thirds vote in both the Senate and House of Representatives.

It covered both how deranged President Trump seems to be now and the legal obstacles to applying the 25th Amendment to overthrow him.

In fact, the procedure specifically can’t be about politics. John Feerick, a Fordham law professor who helped work on the original bill with senators such as Indiana’s Birch Bayh and authored a book titled The 25th Amendment, goes out of his way to point out the many things that do not qualify as “inability” under this law. The list reads like Trump’s résumé.

The debates in Congress about the amendment, Feerick writes, make clear that “inability” does not cover “policy and political differences, unpopularity, poor judgment, incompetence, laziness or impeachable conduct.” When asked about the possibility of invoking the amendment today, Feerick is wary. “It’s a very high bar that has to be satisfied,” he says. “You’re dealing with a president elected for four years.”

Impeachable offenses, according to Article II, Section 4 of the Constitution, are “treason, bribery and other high crimes and misdemeanors”.

I happen to believe that President Trump is unpatriotic and dishonest, but I’m not convinced that he has committed an impeachable offense..

What Are Impeachable Offenses? by Noah Feldman and Jacob Weisberg in the current issue of the New York Review of Books, a good review of the law on the topic.

Feldman and Weisberg point out that, back in 1789, a “high” crime did not necessarily mean an extra-serious crime. A “high” crime was a crime committed by a public official in the performance of their duties.

A crime committed by a President before taking office, even a very serious one, is not an impeachable offense unless it is, in some way, connected with actions while in office.

An impeachable offense would be Trump, once in office, using the power of the Presidency to pay the Russians back for their help.

It also seems to me that a quid pro quo would be almost impossible to prove.

Take Hillary Clinton’s six-figure speaking fees for speaking to Goldman Sachs officers. Was this bribery? She challenged anyone to prove that she changed a single vote or made a single decision in return for these fees, and, of course, nobody could.

This was not bribery. It is simply that the financiers approved of Clinton and her record.

Vladimir Putin made no secret of the fact that he approved of candidate Donald Trump’s hope for better relations between the United States and Russia if Trump were elected.

Maybe he helped Trump by means of leaking hacked e-mails or propagandizing for Trump on social media. Maybe not.

But even if he did, that is a long way from bribery, treason or other high crimes and misdemeanors. It is just that he felt good about Trump and his promises.

By the way, treason under Article III of the Constitution is fighting for the enemy or giving aid and comfort to the enemy in time of war. An act of treason must be an overt act that is witnessed by two people, or is admitted in open court.

The United States has not declared war on Russia, so being friendly to Russia is no more treasonable that being friendly to Saudi Arabia, Israel, China or any other foreign country.

Since November 8 we’ve had four crises of legitimacy of escalating intensity, each one pointing to a change in the Constitutional order.

First, we had Stein’s recount effort, justified in part by a(n unproven) theory that “Russian hacking” had affected the vote tallies. (Recall that 50% of Clinton voters believe this, although no evidence has ever been produced for it, it’s technically infeasible at scale, and statistically improbable.) Since the “Russian hacking” theory was derived from intelligence not shown to the public, the change to the Constitutional order would be that the Intelligence Community (IC) would gain a veto over the legitimacy of a President during a transfer of power; veto power that would be completely unaccountable, since IC sources and methods would not be disclosed.

Second, we had the (hilariously backfired) campaign to have “faithless electors” appoint somebody other than Trump to be President. Here again, the change in the Constitutional order was exactly the same, as (Clintonite) electors clamored to be briefed by the IC on material that would not be shown to the public, giving the IC veto power over the appointment of a President after the vote tallies had been certified.

Third, we had the IC’s JAR report, which in essence accused the President-elect of treason (a capital offense). Here again the publicly available evidence of that quite sloppy report has been shredded, so in essence we have an argument from IC authority that secret evidence they control disqualifies the President elect, so the change in the Constitutional order is the same.

Fourth, we have the “Golden Showers” report, which again is an argument from IC authority, and so again gives the IC veto power over a President appointed by the Electoral College.

Needless to say, once we give the IC veto power over a President before the vote is tallied, and before the electoral college votes, and after the electoral college votes but before the oath of office and the Inaugural, we’re never going to be able to take it back.

This is a crossing the Rubicon moment. Now, you can say this is unique, not normal, an exceptional case, but “sovereign is he who decides on the exception” (Nazi legal theorist Carl Schmidt). And who then is the sovereign? The IC. Is that what liberals want?

The original idea of the Electoral College (Article II, Section 1 of the Constitution) was that Americans would not choose a President ourselves, but instead choose the leading citizens from our communities, and delegate the decision to them.

This idea lasted through precisely one administration, that of George Washington. From then on we had political parties and electors pledged to particular candidates—precisely what the Founders hoped to avoid. This reality was reflected in the Twelfth Amendment.

Now certain opponents of Donald Trump, who claim to be followers of Alexander Hamilton, say that electors should ignore their pledges and exercise independent judgment. This is a terrible idea.

I would be perfectly happy to delegate decision-making to someone I considered to be wise and good, but that is not what I did when I voted in the recent presidential election. Most American voters don’t know the names of the electors they voted for. I don’t. If you do, you’re a rare exception.

I don’t think most Americans who voted for Donald Trump (or, for that matter, for Hillary Clinton) would be willing to see their decisions over-ridden by people they’d never heard of. This is very different from the original idea of the Electoral College. I think that Alexander Hamilton and the other Founders would think so, too.

I got an e-mail the other day asking me to sign a petition to members of the Electoral College pledged to Donald Trump to switch their votes to Hillary Clinton.

This is theoretically possible. “Faithless” electors have violated their pledges in previous elections.

But trying to overturn Trump’s election in the Electoral College would set a terrible precedent. It is a bad and dangerous thing even to attempt.

If I were a Trump voter in a red state, I would be furious at the idea of my vote being set aside by somebody I probably hadn’t even heard of.

It would mean that, in the future, voting would not necessarily decide the Presidential election. The vote would be followed by an attempt to persuade, threaten or bribe the Electors into going against the wishes of the voters.

Democracy is possible only when the results of elections are regarded as legitimate, and a peaceful transfer for power is taken for granted.

When elections are not regarded as legitimate, the basis of power is armed force. And in general the Trump supporters are better armed and better trained in the use of weapons than the Clinton supporters.

If you’re thinking of protesting Donald Trump at or near one of his rallies, my advice is:

Don’t.

∞∞∞

If you insist on your Constitutional right to peacefully assemble, I’ll absolutely defend your right to do it. I’ll defend anybody’s right to peacefully protest.

But if you want to exercise your right to protest Donald Trump in the vicinity of a Trump rally, I advise you to think again. It isn’t always wise to do something just to show you have a right to do it.

You may have every intention in the world of engaging in a peaceful protest. But you don’t have any control over whether the protest is peaceful. That decision rests with the most violent member of your group.

Or they may well be infiltrators working for police or intelligence organizations or for the Trump campaign.

During the anti-Vietnam protests in the late 1960s and early 1970s, police infiltration was a real thing. A friend of mine told me of taking part in a peace march, and noticing that the two hippies in the line ahead of him were wearing the same kind of black shoes that state troopers wore. When they stopped to pick up rocks, my friend had the presence of mind to run into a coffee shop nearby.

Police immediately descended on the marchers, clubbed some of them and took them away. When my friend came out of the shop a hour later, nobody was left but police standing around smoking cigarettes and drinking coffee, including the two apparent hippies.

Part of the Watergate scandal involved Richard Nixon agents posing as Democrats and trying to manipulate the 1972 nominating process from within. A typical example is that Donald Segretti, a Nixon operative, send out letters purportedly approved by Edmund Muskie, the leading candidate, accusing Hubert Humphrey and conservative Senator Henry “Scoop” Jackson.

Roger Stone, a famous Republican dirty-tricks specialists, got his start in politics as a college student playing dirty tricks on behalf of Richard Nixon—for example, making a campaign contribution in the name of a Nixon rival in the name of the Young Socialist Alliance, then mailing the receipt to the Manchester Union-Leader.

All that aside, any violent incident that happens in connection with your protest, whether or not it’s your fault, is going to be blamed on you. Donald Trump thrives on violent confrontations, regardless of who starts them, because they validate what he tells his followers.

Magna Carta is the inspiration for the Fifth Amendment to the U.S. Constitution, which states that “no person shall … be deprived of life, liberty or property without due process of law …”

How is this compatible, as Laurie Calhoun asked in the article linked below, with the President of the United States claiming the right to order the killing of anybody anywhere in the world based on his personal judgment that the killing his warranted?

Malik Jalal has traveled from Pakistan’s Waziristan border region to Britain so as to plead with President Obama to stop trying to kill him.

Malik Jalal

Malik is an honorary title that means “village leader”. He is a member of the North Waziristan Peace Committee, whose mission is to negotiate with the Pakistan Taliban to reduce violence in the region. The committee’s work is sanctioned by the government of Pakistan.

He has survived four attacks by Hellfire missiles and now sleeps out in the woods with his six-year-old son. He wrote in The Independent that he has information that the U.S. military wants to stop the work of the Peace Committee because they think peace would give the Taliban a secure sanctuary.

Jalal wrote that the first attack came in 2010, when his nephew took his vehicle to a service station to get an oil change and to have the tires checked. A Hellfire missile hit Jalal’s vehicle and another vehicle parked just beside it. The nephew was injured and four innocent bystanders were killed.

The next time he was driving to a peace conference, with another vehicle on the road behind, which happened to be the same shade of red as Jalal’s. A Hellfire missile destroyed the trailing vehicle and all four occupants, all innocent bystanders, were killed.

Jalal became sure that he was the target after the next attack. He accepted a dinner invitation by cell phone and, while he was on the way, a Hellfire missile struck, killing three innocent people, including a father of three and a mentally retarded man.

The fourth attack came early in 2011, when the Hellfire missile struck a meeting of community leaders, killing 40 people, none of whom, according to Jalal were engaged in acts of violence.

Since then he has taken to sleeping out of doors on a mountainside far from his house and always parking his vehicle a long distance from any destination. Recently, he said, his six-year-old son has joined him on the mountainside. The little boy said it was unrealistic to think that the U.S. military would refrain from killing Jalal’s family just because he wasn’t at home.

But I do not agree with the non-violent protests that shut down an Arizona highway near a Donald Trump campaign events, nor with other protests intended to prevent Trump from speaking.

Dr. King’s non-violent protests were strategic attacks on structures of power. His protests succeeded to the extent that people in power concluded it would cost them less, in terms of damage to profits and reputation, to give in to his demands than to fight them.

They also succeeded to the extent that Dr. King was able to convince the larger American public that his cause was just, and his protests were disciplined and organized as to give his followers the moral high ground.

Dr. King had specific lists of demands. His opponents always knew what they had to do in order to shut off the protests.

Protestors who try to shut down Donald Trump rallies do not hurt either Trump’s reputation nor his profits. Instead they solidify Trump’s support, while inconveniencing and alienating the general public.

Those protestors are not defending their Constitutional rights. Instead they are denying Trump his right of free speech and his followers their right to peaceably assemble.

Yes, I know the Constitutional rights of Occupy Wall Street, Black Lives Matter and other groups have not been respected, and that Donald Trump himself is not a friend of civil liberties. That does not mean that he and his followers are not entitled to hold meetings or that there is anything to be gained in trying to deny them that right.

Reporters covering Hillary Clinton’s participation in a Fourth of July parade in Gotham, New Hampshire

For decades, reporters who travel with Presidential candidates have been denied the right of ordinary spectators to move about freely at campaign events.

The Secret Service and the candidates’ own security people deny them the right to mingle with crowds. Instead they restrict them to observing campaign events from special roped-off or fenced-off areas.

Such restrictions apply only to members of the national press corps traveling with the President. The local press is usually free to sit in the audience and take notes.

This has no logical relation to protecting the candidates from threats, except to the degree a candidate regards free reporting is a threat. Any restrictions that were necessary to the personal safety of a candidate would logically apply to everyone, not just members of the national press corps.

What is the legal basis for this? Why don’t newspapers and broadcasters protest on Constitutional grounds?

The basis for it is that broadcast and print journalists depend on the candidates to provide them with transportation and the communications facilities they need to do their jobs. Without that help, they or their employers would have to buy their own airline tickets, find places to recharge their computers and cameras and set up their own communications for writings and pictures.

More importantly, the candidates control access. Reporters need to be able to talk to the candidates and the candidates’ staffs, and they won’t get this access unless the candidates see some benefit in giving it. If you’re a reporter, you don’t just need access. You need as much access as your main competitor.

So candidates have many means of punishing reporters they consider hostile or even out of line. Some keep the press on a tight rein, some on a loose rein, but the reins are always there.

A new Texas law gives college students the right to carry guns. College administrations are allowed to establish “safe zones”, but these cannot include classrooms or dormitories.

Below is an advisory by the University of Houston faculty senate to its members.

Peter Van Buren wrote on his web log that it might also be advisable for Texas faculty to wear Kevlar vests and put bullet-proof transparent screens in front of their lecturns.

I don’t think the warning is far-fetched. There is such a thing as road rage, and there is such a thing as people flying into a rage at hearing ideas they think are reprehensible, or even not being called on when it is their turn.

It is a statistical certainty that someday some armed student will fly into a blind rage about something.

The death of Justice Antonin Scalia has left the U.S. Supreme Court with an even number of justices. If they divide four-four on any case, the decision of the lower court stands, but it does not become settled law.

As things stand now, a divided court would not be the worst thing from the standpoint of liberals. They mostly like existing precedents and mostly oppose have them overturned.

My friend Bill Elwell wonders what would happen if President Obama or President Hillary Clinton simply refused to nominate someone to fill a Supreme Court vacancy.

Franklin D. Roosevelt failed to pack the Supreme Court with nominees of his liking. Bill asks: Would this be un-packing the Court?.

I don’t see how this would be any different, or any more obstructive, than Senate Majority Leader Mitch McConnell saying that Republicans will automatically reject any Obama nominee, no matter who the person is.

Article II, Section 2 of the Constitution grants the President the power to appoint Supreme Court justices, with the advice and consent of the Senate, but I find no wording requiring him to do so in a timely manner.

President Obama has already said that he intends to nominate someone to fill Scalia’s vacancy, but does he have a responsibility to nominate a second person or a third if the Senate rejects his first nominee? Of course this is a moot question if the Republicans are going to reject any nominee.

The Deep State is author Mike Lofgren’s term for power centers in Washington, Wall Street and, to an extent, Silicon Valley that determine government policy, yet operate in secret, without accountability to the law or democratic control.

He wrote in The Deep State that the USA is condemned to unending war and economic decline unless the power of the Deep State can be overthrown.

The power of money. Wall Street banks and military contractors have more money available to influence elections than any of their critics do. The Supreme Court has ruled the corporate entities have the same rights as individual human beings, and that spending money can be an exercise of the right of free speech, so there is no practical limit on how much money can be spent on a campaign.

The power of subversion. The FBI has a long history of infiltrating civil rights and peace organizations with informers and undermining them from within. Ditto for the CIA in foreign elections. If the FBI and CIA felt threatened, is there any doubt they would use whatever tools they had to protect themselves?

The power of information. The NSA has the means of learning the personal habits and behavior of every American. Who is there who doesn’t have something in their background that looks bad, or can be made to look bad? The precedent for this is the FBI’s spying on Dr. Martin Luther King Jr., and its dissemination of information about his sex life.

The power of repression. The police crackdown on the Occupy Wall Street movement, which was coordinated by the Department of Homeland Security, shows how the government treats peaceful protest movements as national security threats.

Suppressing the vote. Many techniques exist for suppressing the vote or making votes meaningless. New laws intentionally make it more difficult for members of targeted groups to vote or easier to disqualify them from voting. The Dieboldt electronic voting machines allow vote tampering. and there is some evidence this is happening.

Financial power. When President Bill Clinton took office in 1993, he intended to propose an ambitious program of public works. He never did, because he was told this would cause the “bond markets” to lose confidence in him, and interest rates to rise, choking off the economic recovery and increasing the national debt. If a future President attempted to curb the power of Wall Street, is there any doubt that the financial markets would “lose confidence” in him or her?

Economic dependence. The Department of Defense and other parts of the Deep State employ millions of people, almost all of them honest, patriotic people who believe they are serving their country. Reducing the size of these institutions to what’s needed to defend the country would throw many of them out of work. Without some alternative, this would not only damage the lives of these individuals, but possibly throw the country into recession.

Learned helplessness. Many Americans have come to think of economic oligarchy and perpetual war as facts of life, about which nothing can be done.

I’m reading THE DEEP STATE: The Fall of the Constitution and the Rise of a Shadow Government by Mike Lofgren, a veteran Republican congressional staff member. He wrote the following on pages 32-33:

Other than the two-year period after his inauguration, when Democrats held both the House and the Senate, President Obama has not been able to enact most of his domestic policies and budgets. Because on incessant GOP filibustering, not only could he not fill numerous vacancies on the federal judiciary, he could not even get some of his most innocuous presidential appointees into office. Democrats controlling the Senate during the 113th Congress responded by weakening the filibuster, but Republicans inevitably retaliated with other parliamentary delaying tactics.

Despite this apparent impotence—and defenders of the President are quick to proclaim his powerlessness in the face of ferocious Republican obstruction—President Obama can liquidate American citizens without due process, detain prisoners indefinitely without charge, conduct “dragnet” surveillance on the American people without judicial warrant and engage in unprecedented—at least since the McCarthy era—witch-hunts against federal employees through the so-called Insider Threat Program.

Within the United States, we are confronted with massive displays of intimidating force by militarized federal, state and local law enforcement.

Seeing the popularity of Donald Trump’s nationalism and authoritarianism, many liberals and progressives are reading up on the history of fascism in Europe and wondering about the future of democracy in the USA.

What really makes Donald Trump and other authoritarian Republican candidates so dangerous is George W. Bush and Barack Obama have already created a legal and organizational framework for exercising the powers of a dictator.

Consider the powers claimed by President Obama:

To wage war on his own say-so by means of bombs, drone attacks, Special Operations, proxy armies or any other means short of massive use of American ground troops.

To order the killing on his own say-so of any person he says is a threat to national security.

To preside over a secret national surveillance system that potentially reaches every citizen and covers the whole world.

To prosecute whistle-blowers who reveal abuses of power.

To give immunity from prosecution to torturers, crooked bankers and other high-level criminals.

Obama and Secretary of State Hillary Clinton ordered an attack on Libya, a nation whose government was no threat to the United States, and reduced it to bloody chaos, where radical jihadists flourish. Now Obama is carrying on a proxy war to overthrow the government of Syria, which also was no threat to the United States, and which, if successful, would create more bloody chaos where ISIS terrorists would flourish.

The Department of Homeland Security exists in theory to protect Americans from jihadist terrorists from abroad. But it was used to coordinate a nationwide crackdown on Occupy Wall Street protesters, which, whatever you think of them, constituted no threat to the security of the homeland.

To sum up: The President has the power to commit acts of war, with no accountability. He has the power to sign death warrants, with no accountability. He presides over a vast surveillance apparatus which can be used to spy on dissenters and he prosecutes those who reveal abuses of power.

What power would be lacking for a would-be dictator? Maybe you think President Obama has enough restraint and good judgment to be trusted with such power. But he is not going to be in office after January, 2017. Somebody else is.

Recently the U.S. Congress did enact one restriction on abuse of power. Congress banned torture and limited interrogation to what is now permitted in the U.S. Army field manual. But, oddly enough, this does not seem to bother Donald Trump, who continues to promise that, if elected, he would authorize torture.

How could Trump promise to do something that is against the law? Well, torture was against international law all along. And there is another law, called the War Powers Act, which forbids the President to engage in acts of war without congressional authorization except in an emergency, and then to get authorization within 60 days. President Obama has disregarded this law, without consequences, so why couldn’t President Trump disregard the anti-torture law?

During the Watergate era, President Richard M. Nixon broke the law and abused the power of his office. There were countervailing forces in Congress, in the courts, in the press and in his own administration that held him in check and made his accountable. Where are today’s checks and balances?

Gun prohibition would not work, and would create worse problems, just as alcohol prohibition did and drug prohibition is now doing.

Ownership of firearms by law-abiding, responsible people is not a social problem.

Much (not all) gun legislation is security theater. It doesn’t make people safer, but it makes them feel safer.

The Second Amendment to the Constitution states that “the right of the people to keep and bear arms shall not be infringed.” The Supreme Court has held that this is an individual right.

The right to self-defense is a human right. Thomas Hobbes and other philosophers have called it the most fundamental human right.

Throughout history and across many cultures, freedom is associated with the right to own weapons and the duty to fight for one’s community or nation. Throughout history and across many cultures, slaves and subjugated people are denied the right to own weapons.

The United States historically is a gun culture. Guns have had a cultural and symbolic significance in American culture similar to the sword in Japanese culture.

But in practice they are directed mostly at persecuting harmless and powerless people for trivial reasons.

They violate historical and well-established rights to free speech and due process of law, which apply to everyone, including real Communists and real racists.

They are used to prevent full and free debate of sensitive and important issues.

They divert attention from real abuses of power. Anti-Communism in the old days provided cover for abuses of power by corporations and American foreign policy. Hate speech rules today provide cover big for university administrators who jack up tuition, push down wages of adjunct and other teachers and give themselves and their consultants six-figure and seven-figure incomes.

I’m old enough to have a living memory of McCarthyism. Back in the day, I was anti-McCarthy, anti-Communist, anti-racist and pro-free speech. I still am.